Religious freedom and 42 USC 666

[Berg, Thomas C.]

To the extent that he objects to paying the support even if the provision is renumbered, because the requirement is of the antichrist and the 666 simply evidences that, then I assume most courts would hold there's a burden but it's overcome by a compelling interest.  To the extent he says his objection would be cured by renumbering the provision, then doesn't this seem like Bowen v. Roy -- and therefore not a cognizable burden -- in that the numbering of a statute is a matter of the government's internal procedures like the assignment of a social security number in Roy?  If renumbering the provision would meet the objection, then the objection seems separable from the payment requirement itself and thus (arguably) concerns an internal government matter.  It's not clear how much the Roy principle applies to RFRAs, but this might be the explanation for rejecting his claim that fits best into the previous law.
 
Tom Berg
University of St. Thomas School of Law (Minnesota)
 

________________________________

From: religionlaw-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Thu 7/31/2008 5:19 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious freedom and 42 USC 666



Jean Dudley writes:

> >     As to the rest of the argument below, I don't think it
> can work under
> > Thomas v. Employment Division.  It is not for a court to
> decide what's
> > the best reading of Revelations, or whether the federal
> statute indeed
> > sufficiently bears the mark of the beast, or whether "mark of the
> > beast" should be read literally -- just as it's not for a court to
> > decide whether someone who refuses to eat meat and milk is properly
> > interpreting "Thou shalt not seethe a kid in his mother's milk," or
> > whether someone who refuses to work on tank turrets is properly
> > interpreting his religion's commands of pacifism (that's the Thomas
> > case itself).  The question is whether Sherrod's religious
> belief is
> > sincere, not whether it's a sensible interpretation of the Bible.
>
> Yes, I suppose that is a valid reason.  In that case,
> sincerity shouldn't matter either, should it?  The law is the
> law, regardless of the sequential number assigned to it. 
> Moral obligation to uphold the law (in this case pay child
> support, and of course the moral obligation to pay child
> support as well) should over ride religious sincerity.  In
> short, do the right and legal thing even if it is to an
> "agent/agency of Satan".

        That's a perfectly plausible conclusion -- in fact it is the
conclusion the Court reached in Smith.  But federal and state RFRAs, and
state constitutional provisions that have been interpreted as
implementing a Sherbert-like regime, expressly assume the opposite.  So
the question is how the case should come out under those regimes.
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